Critical habitat consists of specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical or biological features that are essential to the conservation of the species, and which may require special management considerations and protection. Critical habitat also includes specific areas outside the geographical area occupied by the species at the time it is listed that are essential for the conservation of the species.
As part of the 2004 Endangered Species Act (ESA) amendment, section 4(a)(3) exempted the DoD from critical habitat designations so long as an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a) and acceptable to the Secretary of the Interior is in place. Section 4(b)(2) of the 2004 amendment allows the Secretary of the Interior to make critical habitat exclusions for economic or national security considerations. The DoD subsequently prepared specific guidance regarding the ESA amendment. The following, excerpted from DoD Manual 4715.03, Integrated Natural Resources Management Plan (INRMP) Implementation Manual (November 25, 2013, incorporating change 2 from 2018), provides detailed DoD guidance:
1) On the topic of critical habitat exclusion and special management criteria:
a) ESA
(1) Critical Habitat Designation Restrictions. Pursuant to section
4(a)(3)(B)(i) of the ESA, the Secretaries of the Departments of Interior and Commerce are prohibited from designating as critical habitat any lands or other geographical areas owned or controlled by the DoD, or designated for its use, that are subject to an INRMP prepared pursuant to section 670a of the Sikes Act. This restriction applies if either Secretary determines in writing that a given INRMP provides a benefit to the species for which critical habitat is proposed for designation pursuant to section 318 of Public Law 108-136 (Reference (l)).
(2) Threatened and Endangered Species and Critical Habitat. Pursuant to section 7 of the ESA, the DoD consults with the FWS, and NOAA Fisheries when threatened or endangered species or designated critical habitats are in question, to ensure no DoD action will likely jeopardize the continued existence of listed species, or destroy or adversely modify designated critical habitats. An Incidental Take Statement acquired in accordance with section 7(b)(4) of the ESA is necessary for DoD action proponents to be exempt from the take prohibitions described in section 9 of the ESA.
b) FWS Special Management Criteria. The FWS uses three criteria to determine if an INRMP provides adequate special management or protection to eliminate the need for critical habitat designation:
i) The INRMP provides a conservation benefit to the listed species. The cumulative benefits of the management activities identified in the INRMP for its duration maintains or provides for an increase in a species’ population or the enhancement or restoration of its habitat within the area included in the INRMP (i.e., those areas essential to the conservation of the species). A conservation benefit may result from reducing habitat fragmentation, maintaining or increasing populations, insuring against catastrophic events, enhancing and restoring habitats, buffering protected areas, or testing and implementing new conservation strategies.
ii) The INRMP provides certainty that relevant agreed-on actions will be implemented. Persons implementing the INRMP can accomplish its goals and objectives, have adequate funding to implement agreed upon activities, have implementation authority, and have obtained all the necessary authorizations or approvals. The INRMP includes an implementation schedule, including completion dates, for the conservation effort.
iii) The INRMP provides certainty that the conservation effort will be effective. FWS considers these criteria when determining the effectiveness of the conservation effort:
(a) Biological goals, which are broad guiding principles for the
program, and objectives, which are measurable targets for
achieving the goals
(b) Quantifiable, scientifically valid parameters that demonstrate
achieving objectives and standards measuring progress.
(c) Provisions for monitoring and, where appropriate, adaptive
management.
(d) Provisions for reporting progress on implementation based on compliance with the implementation schedule and effectiveness based on evaluation of quantifiable parameters of the conservation effort.
(e) A period of time sufficient to implement the actions and achieve the benefits of its goals and objectives.
c) Exclusion. Pursuant to section 4(b)(2) of the ESA, the Secretary of the Interior may exclude a military installation or portion of an installation from critical habitat if, after considering the economic impact and the impact on national security, the Secretary determines that the benefits of exclusion outweigh the benefits of inclusion. An installation provides the necessary and relevant information explaining the national security implications of critical habitat designation on the military installation.
2) On the topic of implementation to avoid critical habitat: To take advantage of the ESA 4(a)(3)(B)(i) exemption and avoid FWS or NOAA Fisheries designation of critical habitat on DoD installations, each installation implements its INRMP by executing appropriate projects and activities in accordance with specific timeframes identified in the INRMP. The DoD Components prioritize projects with the assistance from the FWS, appropriate State fish and wildlife agencies, and NOAA Fisheries if applicable. The DoD Components may provide this information after review and validation of the priorities and estimated costs of the requirements.
Army guidance is presented in the memo entitled “Army Guidance on Endangered Species Act (ESA) Critical Habitat (CH) Designations and Consultations” (December 2005). Additional guidance may exist for other services.
Collectively, the exemptions and exclusions under the 2004 ESA amendment are considered critical habitat “avoidance”. Among the military services, the Navy has the highest number of species habitat exemptions and exclusions (Figure 5.3). Of the roughly 400 critical habitat actions between DoD and ESA regulatory agencies from FY2004 through FY2017, 62% resulted in exemptions, 31% resulted in exclusions, and 7% resulted in critical habitat being designated on an installation.
Recent critical habitat exemptions that have been made possible by INRMP commitments (section 4(a)(3)) include the threatened piping plover (Charadrius melodus) at Marine Corps Base Camp Lejeune in 2015, the endangered Florida brickell-bush (Brickellia mosieri) at Patrick Air Force Base in 2015, various distinct population segments of the endangered Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) at West Point Military Academy and several east coast Navy facilities, and the endangered Taylor’s checkerspot (Euphydryas editha taylori) at Joint Base Lewis-McChord in 2013.
Several years following the ESA amendment, May and Porier (2006) examined the issue with an article in the Air Force Law Review. Overall, they concluded that the INRMP is an acceptable substitute for critical habitat designation, as long as it is thoroughly prepared and adequately funded. They emphasized attention to procedural and substantive INRMP elements to ensure that ESA requirements are fully supported and that the INRMP embraces a broad perspective, true to the principles of ecosystem management, which extends beyond the installation boundaries. They identified the following perceived “weak spots” in using INRMPS in lieu of critical habitat designation and proposed remedies to strengthen INRMPs (May and Porier 2006).
- Concern: A military installation could have its INRMP qualify as adequate special management or protection if the FWS determined that the INRMP provided a “conservation benefit to the species” and met two additional criteria listed above. However, the FWS or the legislation does not specifically define that language. Remedy: the FWS should promulgate a standard definition for “conservation benefit to the species.”
- Concern: Any INRMP is only as good as its funding. Therefore, its substitution for critical habitat designation should be dependent on the underlying funding. Proof of adequate funding was previously required to get the designation substitution. Not all actions and projects covered in an INRMP fall into the “must fund” category, which may lead to important portions of INRMPs never being implemented due to lack of funds. Remedy: The DoD would be prudent to ensure that INRMPs are adequately funded every year. Without a definition of “benefit to the species” in place, it is possible that an INRMP could be approved by the FWS and then not be adequately funded in subsequent fiscal years, reducing the INRMP’s effectiveness.
- Concern: “Reasonable and prudent” measures included in biological opinions issued by the FWS can only impose minor changes on the DoD action, but must be complied with by the DoD. Remedy: Because the reasonable and prudent measures are a result of consultation with the FWS regarding threatened or endangered species and habitat, any conditions placed upon an installation as a result of reasonable and prudent measures should be included in the underlying INRMP.
- Concern: FWS species recovery plans must contain a description of site specific management actions necessary to achieve the goal of the plan— objective, measurable criteria that, when met, warrant the species being delisted— and time estimates for obtaining the plan’s goal. Most significantly for INRMP considerations, any new or revised recovery plan must provide public notice and opportunity for comment. Remedy: A successful INRMP should encompass recovery plans for any endangered or threatened species on the installation.
- Concern: DoD, through consultation with the FWS, is required by the ESA to be proactive in furthering the purposes of the ESA by planning for and carrying out conservation programs for listed species. Cooperatively developed conservation agreements, management plans, and recovery plans developed for listed species are often implemented and funded through partnerships and memoranda of understanding (MOUs) with the FWS. Remedy: MOUs that have been implemented for a DoD installation should be included within the INRMP.
- Concern: Adjacent private lands may not be addressed in the INRMP. Remedy: A variety of programs and arrangements for private landowners (e.g., habitat conservation plans, safe harbor agreements, candidate conservation agreements to help them manage endangered species on their own land) should be considered in a successful INRMP.
Next Page: Installation hunting and fishing activities28
Author
David S. Jones, RA IV, Ecologist/Project Manager
Center for Environmental Management of Military Lands
Warner College of Natural Resources
Colorado State University